Qualified Business Income (Pass-Through) Under the Newly Enacted Tax Law

Qualified Business Income (Pass-Through) Under the Newly Enacted Tax Law

Just before Christmas, President Trump signed legislation providing a significant new tax deduction taking effect in 2018. This should provide a substantial tax benefit to individuals with “qualified business income” (QBI) from a partnership, S corporation, LLC, or sole proprietorship. This type of income is sometimes referred to as “pass-through” income.

In general, the deduction is equal to 20% of “qualified business income” from a partnership, S corporation, or sole proprietorship. QBI is the net amount of items of income, gain, deduction, and loss with respect to your trade or business. The business must be conducted within the U.S. to qualify, and specified investment-related items are not included (e.g., capital gains or losses, dividends, and interest income) unless the interest is properly allocable to the business.

Please note that the trade or business of being an employee does not qualify. Also, QBI does not include reasonable compensation received from an S corporation or a guaranteed payment received from a partnership for services provided to a partnership’s business.

The deduction is taken “below the line,” which means it reduces your taxable income, but not your adjusted gross income. It is available whether you itemize deductions or take the standard deduction. In general, the deduction cannot exceed 20% of the excess of your taxable income over net capital gain. If QBI is less than zero, it is treated as a loss from a qualified business in the following year.

Rules are in place (discussed below) to deter high-income taxpayers from attempting to convert wages or other compensation for personal services into income eligible for the deduction.

These rules involve “thresholds,” i.e. taxable income of over $157,500 ($315,000 for joint filers).

  • If your taxable income is at least $50,000 above the threshold, i.e., it is at least $207,500 ($157,500 + $50,000), all of the net income from a specified service trade or business is excluded from QBI. (Joint filers would use an amount $100,000 above the $315,000 threshold, viz., $415,000.)
  • For taxable incomes between the threshold amounts and the $207,500/$415,000 amounts, the exclusion from QBI of income from specified service trades or businesses is phased in. Specified service trades or businesses are trades or businesses involving the performance of services in the fields of health, law, consulting, athletics, financial, or brokerage services, or where the principal asset is the reputation or skill of one or more employees or owners.

Additionally, for taxpayers with taxable income more than the above thresholds, there is a limitation on the amount of the deduction that is based either on wages paid or wages paid plus a capital element. Here’s how it works:

If your taxable income is at least $207,500 ($415,000 for joint filers), your deduction for QBI cannot exceed the greater of:

  • 50% of your allocable share of the W-2 wages paid with respect to the qualified trade or business, or
  • The sum of 25% of such wages plus 2.5% of the unadjusted basis immediately after acquisition of tangible depreciable property used in the business (including real estate). For taxable incomes that are between the threshold amounts and the $207,500/$415,000 amounts, a phase-in of the limitation applies.

Obviously, the complexities surrounding this substantial new deduction can be formidable, especially if your taxable income exceeds the thresholds discussed above. If you wish to work through the mechanics of the deduction with me, with particular attention to the impact it can have on your specific tax law situation, please do not hesitate to contact me.

Jonathan Mishkin

Jonathan D. Mishkin focuses his practice on tax/trust controversy, estate planning, taxation and closely-held business advisory services with offices in Portland, Bend and West Linn. Drawing on deep experience gained inside both large accounting firms and large law firms, Mr. Mishkin capably advises and counsels individuals, families and their businesses, and trusts/trustees.

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